Opinion: Parliament monopolised the attention of public and constitutional law experts late last month. And for good reason. It is no mean feat for a parliamentary majority unwittingly to imperil the constitution. But by passing legislation to entrench part of the Three Waters bill, that is exactly what Parliament did.
This was merely the state’s second failing in November. The Supreme Court’s decision in the voting age case revealed similarly egregious errors by two other branches of government: the judiciary and the executive.
Let’s start with the Supreme Court. In a majority judgment, the country’s highest court found by setting the minimum voting age at 18, the Electoral Act infringed the right to freedom from discrimination on the grounds of age enshrined in section 19 of the New Zealand Bill of Rights Act.
The court concluded the infringement was not justified under section 5 of the Bill of Rights.
Section 5 is Parliament’s Bill of Rights escape clause. It permits Parliament to impose such “reasonable limits” on rights protected by the Bill of Rights “as can be demonstrably justified in a free and democratic society”. Examples include lockdowns during pandemics or conscription powers in times of war. Or even … limitations on voting rights for those citizens not sufficiently mature or mentally competent to exercise them.
It will come as no surprise to anyone who has raised 16-year-olds that the statute books are packed with a myriad of restrictions on 16-year-olds’ rights. From buying cigarettes to entering binding contracts and even parental guardianship rights, successive Parliaments have felt justified in imposing rafts of restrictions that only expire on children attaining adulthood. Yet when it comes to voting rights, our Supreme Court – undoubtedly the country’s most activist court ever – decided the restriction on voting was not justified.
But more on that shortly. The biggest problem with the Supreme Court’s judgment is not with its finding on section 5, it’s that the court’s interpretation of the Bill of Rights is just plain wrong.
Read in isolation, it is easy to see how someone might conclude that the Electoral Act breaches section 19. After all, section 19 creates a general right to freedom from discrimination on any ground protected by the Human Rights Act 1990. Those grounds include sex, religious belief, colour, race and age.
“Age” is defined as “any age over 16”. Thankfully, this means that Parliament and the electorate will be spared having to consider whether to give, say, five-year-olds the vote.
But because 16-year-olds have a right to freedom from discrimination, this calls into question the Electoral Act restriction on 16- and 17-year-olds from voting.
As far as a majority of the Supreme Court was concerned, the words of section 19 were plain enough. By limiting voting rights to those aged 18 and over, they concluded the Electoral Act discriminates on the grounds of age. Round one to the 16-year-olds.
By explicitly referring only to the voting rights of 18-year-olds, the Bill of Rights makes clear those aged under 18 do not have voting rights protected by the Bill of Rights. It is barely conceivable this should not have been obvious to the Supreme Court
But, as any lawyer knows, you cannot interpret a single section of an act in isolation from other provisions in the act. And this is true of the Bill of Rights Act itself.
This brings us to section 12(a) of the Bill of Rights. This section guarantees the voting rights of “every New Zealand citizen who is of or over the age of 18 years”.
On the reasoning of the majority, by not guaranteeing the voting rights of 16-year-olds, section 12(a) is itself discriminatory. Does this mean the Bill of Rights breaches itself?
The answer is, “of course not”. Section 19 – a provision covering discrimination generally – must be read subject to the specific words of section 12(a). This is a standard principle of statutory interpretation.
By explicitly referring only to the voting rights of 18-year-olds, the Bill of Rights makes clear those aged under 18 do not have voting rights protected by the Bill of Rights.
It is barely conceivable this should not have been obvious to the Supreme Court. And to be fair, it was clear to one of the judges – Justice Kós, who dissented – that section 12(a) is decisive. Yet even Kós came to that conclusion via a circuitous route.
How could this be? After all, our Supreme Court represents the pinnacle of legal achievement in New Zealand. How could their honours have so egregiously misdirected themselves?
At least part of the answer is a failing in another branch of the state, by the Attorney-General, David Parker, a member of the executive branch of government.
When the Crown is sued, the Attorney-General is the respondent. So, it is the Attorney-General’s responsibility to conduct the Crown’s defence. Typically, the Attorney-General does not perform this role personally. Instead, they use the state’s in-house law firm, Crown Law. But the Attorney-General is Crown Law’s “client”. And, when it comes to litigation involving the Crown, it is with the Attorney-General that the buck stops.
Remarkably, the Attorney-General abandoned the Crown’s reliance on section 12(a) before the hearing in the Supreme Court. This, even though the Crown relied on the provision in its (successful) hearing before the High Court in 2020 and (unsuccessful) hearing before the Court of Appeal in 2021.
Despite the Crown electing not to rely on its best argument, the Supreme Court requested the Crown’s lawyers to address the issue at the hearing. Indeed, in his judgment, Justice Kós bemoaned that there was not more argument before the court on the point. “Important questions of public rights before this Court … [should not be] resolved by the forensic choices made by the parties,” he said. Indeed.
Unfortunately, the arguments raised by counsel for the Crown “off the cuff” did not find favour with a majority of the judges.
This was not the only perplexing choice the Attorney-General made in the conduct of the Crown’s case. The other concerned his approach to the question of whether, if the Electoral Act did discriminate against 16-year-olds, the restriction was justified under section 5.
The Attorney-General argued the court should conclude 18 was a justified limit on voting rights. But he did not attempt to show why 18, rather than 16 or 17, was appropriate.
When the law imposes so many restrictions on 16-year-olds’ rights, this was a remarkable failure.
It is telling that the Supreme Court was more forgiving. The majority merely noted the Crown may have seen it “as preferable not to express a view on the point until the process(es) adopted to measure public support for change have been concluded”. This suggests a court (and Attorney-General) more attuned to the process of reforming the law rather than its interpretation.
In any case, taken together, the Attorney-General’s stance before the Supreme Court suggests at best a half-hearted attempt to defend the Electoral Act.
The outcome is that Parliament is now to consider legislation amending the voting age to 16. And that brings us back to the question of entrenchment.
As a fundamental aspect of our constitutional framework, the voting age limit in the Electoral Act is entrenched by a provision requiring a 75 percent parliamentary majority to amend it. In a parliamentary democracy, entrenchment is more a moral constraint on Parliament than a legal one. That is because parliament is supreme.
The Prime Minister has confirmed the Government will respect the requirements of entrenchment and require a 75 percent parliamentary majority to reduce the minimum voting age from 18.
After a fortnight of failings, voters will surely greet that news with relief.
Eric Crampton is away but will be back next Tuesday